Anyone with a lawsuit against USCIS or thinking about a lawsuit (Merged)

[wommei]

jefkorn

Hey, jefkorn,

I think you could use some paragraph from "opposition to Motion to Stay from 9th circuit" uploaded by lazycis (i think the date it was uploaded was from April 17th-April 24th) and it has some helpful stuff about the name check. So far, the defendants haven't been able to come up with something to counter it, except keeping lying to federal judges. My AUSA still insist that FBI name check is a proper tool to prevent terrorist.... But I guess their bold lies will just irritate the judges more than they already did.
It is also true that we should educate the judges and it may benefit the WOMers after us. I read some opinions from my district court lately. And in several of the opinions, it still says something like " The plaintiffs didn't challenge the name check procedure... THey just want to have their applications processed within a reasonable time." So if judges know that Name check is not required by law, that will make a huge difference for sure. Also it is a good idea to include the Feb 4th Memo in the complaint, i think.

Hi all,
How can I find WOMs only related to AOS using Pacer? I searched for Chertoff as the party and 890 as the nature of suit but that brought back Citz. cases as well.

May be there's a better way to search using Lexis but I don't have an account. I wanted to look at some Complaint samples esp. after the name check polciy change and see how different complaint are incorporating that. In general, study different complaints to improve my own. I would like to look at some sample complaints (other than the ones available at WIKI page)?

Thanks

 

[N400-Misery]

WoM filed TODAY - N400 w/ no interview

Friends,

Just an FYI: With the help of Lazycis I filed my WoM today at the US District Court (Southern District of Texas)

Judge assigned is: Lee H Rosenthal

Thanks Lazycis for all your time and dedication.

================================
Time Line:
N400 @ TSC
PD: 11/??/06
FP: 12/??/06
ID: ???????
WoM: 05/19/08
Appeal: Will go for it if I have to ..

 

[wommei]

Visa number was assigned when it is filed in early 80's

Hey, lazycis and others,

I just found the following from page 36 on Ombudsman Report for 2007. Basically, Ombudsman suggest that USCIS should assign visa numbers when the application is filed, not when it is approved. It also mentioned the visa number was assigned to an application when it is FILED. But they modified the procedure because USCIS could not adhere to the requirements to return unused visa numbers immediately.
Do you think it is better to include this as Exhibit in my MSJ, lazy? I am not sure if this will work for me or against me? Thanks a lot!

USCIS also added (at p. 8):
With respect to the recommendation that USCIS assign visa numbers to cases as they are received, the process the Ombudsman describes was the process in place a number of years ago. DOS, which manages overall visa number allocations, modified that process to the procedure in effect today. It is their policy to allocate visa numbers to USCIS adjustment cases only as the point of approval is reached.
However, through the tri-agency meetings, DOS explained that the modification to the program occurred in the early 1980s because INS could not adhere to the requirements to return unused visa numbers immediately. The Ombudsman understands that DOS prefers that cases are reported qualified for a visa earlier than at approval. In the last several months, there have been several suggestions on how to accomplish that task, but operational concerns remain. The Ombudsman hopes that USCIS and DOS can reestablish the older program with improved processing and technology to ensure timely and accurate reporting of cases ready-to-issue and to prevent the future loss of visa numbers.
In the 2006 Annual Report (at p. 16, AR 2006 -- 02), the Ombudsman also recommended that USCIS assign visa numbers to employment-based green card applications as applicants file them. The Ombudsman continues to recommend that USCIS work with DOS to reinstate that process which existed in the early 1980s, wherein DOS issued visa numbers for both employment and family-based applications for applicants as they applied rather than as they were approved. This process would ensure that USCIS does not accept more applications than the number of visas available.

 

[OK-Boy]

Filing teh WOM is the hard step; don't worry the rest of things gonna be easy. The final victory will be yours...

Friends,

Just an FYI: With the help of Lazycis I filed my WoM today at the US District Court (Southern District of Texas)

Judge assigned is: Lee H Rosenthal

Thanks Lazycis for all your time and dedication.

================================
Time Line:
N400 @ TSC
PD: 11/??/06
FP: 12/??/06
ID: ???????
WoM: 05/19/08
Appeal: Will go for it if I have to ..

 

[citizen2008]

Filing teh WOM is the hard step; don't worry the rest of things gonna be easy. The final victory will be yours...

Hey OK-Boy, do you think filing a WOM after waiting for about 9 months is acceptable to the court as sufficent delay in processing by USCIS?

Other readers, please give me your thoughts in this.

 

[OK-Boy]

Citizen2008,

You need to wait a little longer; atleast up to a year or so even though your statet CA is really friendly towards WOM. Mean while, write all the congressional members, FOIPA, FBI Rap Sheet, Vice President, etc and keep the record of everything.

Hey OK-Boy, do you think filing a WOM after waiting for about 9 months is acceptable to the court as sufficent delay in processing by USCIS?

Other readers, please give me your thoughts in this.

 

[jefkorn]

Since it's the court who is going to decide if a delay in unreasonable in a given case. Also the previous decisions in similar situation also matter because they act as precedents upon which the court can kind of refer to declare if the delay in the case before the court is unreasonable or not. It might as well be unreasonable in the eyes of the court when you file and you can show the court that you did everything you could and exhausted all administrative remedies.
You didn't have interview so I'm assuming you will have to file WOM because "examination" hasn't happened yet.
Lazycis was working on a template for Natz. applicants who didn't have the interview. Like OK-Boy said, gather all the evidence of your efforts, paper trail . Also document your infopass responses and phone calls to USCIS(the name of the officer, badge/ID #, time and date, InfoPass appointment printout, proof of mail for any letters sent) so when you r ready, u will have all the evidence.
Good Luck

Hey OK-Boy, do you think filing a WOM after waiting for about 9 months is acceptable to the court as sufficent delay in processing by USCIS?

Other readers, please give me your thoughts in this.

 

[Cybex]

Wrapping up my mailing campaign

Hi guys,

Speaking of exhaustion of administrative remedies. CIS itself, Ombudsman, FL, president, Obama, congressman, Chertoff, Mueller, Canon - are all done. Would you suggest to include anybody else in the checklist? In the sample complaint I'm using not all of these people are mentioned, but it doesn't hurt to send them certified mail.

Do you think it's enough?

 

[wommei]

Hey, Cybex,

I think that would be enough for the lawsuit. But you should put all the letters to all these people in the exhibit, to show that you exhausted administrative remedies. In my opinion, the judges are busy with murder trials and other things. This is probably a trivial case to them. THey don't like to be bothered unless you tried everything else and it didn't work.

Hi guys,

Speaking of exhaustion of administrative remedies. CIS itself, Ombudsman, FL, president, Obama, congressman, Chertoff, Mueller, Canon - are all done. Would you suggest to include anybody else in the checklist? In the sample complaint I'm using not all of these people are mentioned, but it doesn't hurt to send them certified mail.

Do you think it's enough?

 

[jefkorn]

wommei

Thanks wommei, that should be helpful. In the attached Report and Recommendation by judge Janie Mayerson, Dist. of Minnesota, the plaintiff didn't refer to NC memo, the judge explicitly refers to NC and Mocanu on page 15 on the footnote. An excerpt from my Complaint, it's not final and still a work in progress but to give you an idea.

• On Feb. 04, 2008, the USCIS issues "Revised National Security Adjudication and Reporting Requirements," which now require if a name check in connection with an I-485 application has been pending more than 180 days and the application is otherwise approvable, the application shall be approved and card issued. See February 4, 2008 U.S. Citizenship and Immigration Services Interoffice Memorandum regarding Revised National Security Adjudication and Reporting Requirements ("February 4, 2008 USCIS Memorandum") attached to Praecipe to File Certification of Supplement to the Administrative Record (ARCIS) and Memorandum regarding Revised National Security Adjudication and Reporting Requirements (filed as Docket No. 27 on February 6, 2008 in the matter of Mocanu v. Mueller, et al.,(No. 07-0445 (E.D. Pa. filed Feb. 01, 2007)) .
  
• On Feb. 11, 2008, the Plaintiff faxed a request to Gerard Heinauer, Director of NSC to adjudicate Plaintiff and his wife’s I-485 applications expeditiously as they were eligible under the February 4, 2008 USCIS Memorandum.
  
• On Feb. 28, 2008, USCIS issued a public announcement on its website, titled "Questions and Answers: Background Check Policy Update" on 02/28/2008 (February 28, 2008 USCIS Qs & As). It stated: “...USCIS anticipates the majority of the cases subject to this policy modification will be processed by mid-March 2008.

Hey, jefkorn,

I think you could use some paragraph from "opposition to Motion to Stay from 9th circuit" uploaded by lazycis (i think the date it was uploaded was from April 17th-April 24th) and it has some helpful stuff about the name check. So far, the defendants haven't been able to come up with something to counter it, except keeping lying to federal judges. My AUSA still insist that FBI name check is a proper tool to prevent terrorist.... But I guess their bold lies will just irritate the judges more than they already did.
It is also true that we should educate the judges and it may benefit the WOMers after us. I read some opinions from my district court lately. And in several of the opinions, it still says something like " The plaintiffs didn't challenge the name check procedure... THey just want to have their applications processed within a reasonable time." So if judges know that Name check is not required by law, that will make a huge difference for sure. Also it is a good idea to include the Feb 4th Memo in the complaint, i think.

 

[sweetapple]

Lazycis and others:

I filed my 1447 (b) lawsuit today at MD district court. I gave them cover sheet + complaint + summons. The clerk told me that I have to wait for a week to get a case number and they will send the summons to me in mail. I thought that I should get it right way because I am filing in person. Anyway, I just have to wait. It takes time and I shouldn't have waited for
so long (2 + yrs) to file the lawsuit. Hopefully. I can vote in Nov.

Thanks for your help!

 

[OK-Boy]

Here you go; you took the best decision of your life which was hostage by USCIS. Did you ask the Court to get ya Oath rather than remanding it to USCIS?

Lazycis and others:

I filed my 1447 (b) lawsuit today at MD district court. I gave them cover sheet + complaint + summons. The clerk told me that I have to wait for a week to get a case number and they will send the summons to me in mail. I thought that I should get it right way because I am filing in person. Anyway, I just have to wait. It takes time and I shouldn't have waited for
so long (2 + yrs) to file the lawsuit. Hopefully. I can vote in Nov.

Thanks for your help!

 

[wommei]

jefkorn

Hey, jefkorn,

Lazycis came up with the following important arguments about name check, and I think you could include it in your complaint. It basically indicates that USCIS confirmed that FBI name check is not required by law.

Finally, the Memo by Michael Aytes, Associate Director, Domestic Operations, United States Citizenship and Immigration Services from February 4, 2008 which instructed all USCIS employees to adjudicate adjustment applications when the FBI name check has been pending for 180 days or more without waiting for the results of the FBI name check confirms that the FBI name check requirements is not contemplated by federal laws and regulations. The Memo says, in particular:
“USCIS is issuing revised guidance in response to recommendations of the DHS office of Inspector General (OIG-06-06) regarding the need to align the agency’s background and security check policies with those of U.S. Immigration and Customs Enforcement (ICE)… In the context of removal proceedings, ICE has determined that FBI fingerprint check and Interagency Border Inspection Services (IBIS) checks are the required security checks for purposes of applicable regulations”.
Given the fact, that adjustment of status can be granted in removal proceedings (see 8 C.F.R. § 240.1(a), 8 U.S.C. § 1255), we conclude that FBI name check is not required by federal laws or regulations to adjudicate AOS application. Plaintiffs would also like to raise a question: “Why the USCIS waited 3 years to follow recommendation issued in year 2005?”.

Thanks wommei, that should be helpful. In the attached Report and Recommendation by judge Janie Mayerson, Dist. of Minnesota, the plaintiff didn't refer to NC memo, the judge explicitly refers to NC and Mocanu on page 15 on the footnote. An excerpt from my Complaint, it's not final and still a work in progress but to give you an idea.

• On Feb. 04, 2008, the USCIS issues "Revised National Security Adjudication and Reporting Requirements," which now require if a name check in connection with an I-485 application has been pending more than 180 days and the application is otherwise approvable, the application shall be approved and card issued. See February 4, 2008 U.S. Citizenship and Immigration Services Interoffice Memorandum regarding Revised National Security Adjudication and Reporting Requirements ("February 4, 2008 USCIS Memorandum") attached to Praecipe to File Certification of Supplement to the Administrative Record (ARCIS) and Memorandum regarding Revised National Security Adjudication and Reporting Requirements (filed as Docket No. 27 on February 6, 2008 in the matter of Mocanu v. Mueller, et al.,(No. 07-0445 (E.D. Pa. filed Feb. 01, 2007)) .
  
• On Feb. 11, 2008, the Plaintiff faxed a request to Gerard Heinauer, Director of NSC to adjudicate Plaintiff and his wife’s I-485 applications expeditiously as they were eligible under the February 4, 2008 USCIS Memorandum.
  
• On Feb. 28, 2008, USCIS issued a public announcement on its website, titled "Questions and Answers: Background Check Policy Update" on 02/28/2008 (February 28, 2008 USCIS Qs & As). It stated: “...USCIS anticipates the majority of the cases subject to this policy modification will be processed by mid-March 2008.

 

[sweetapple]

No, I didn't. I read many similar lawsuits filed by lawyers and they didn't ask the court to get the oath either. Do you have any suggestions?

But I do ask the court to "assume jurisdiction over the matter", and
I mentioned something like " if Plaintiff's naturalization is granted, to compel the USCIS to conduct oath ceremony within 20days of the order." .

I searched many closed 1447b cases in this court, It looks like that almost all decisions from judge were to remand to USCIS and asked them to get the case resolved in 30days. It doesn't matter a 4 page law suit filed by a pro se plaintiff or 10+ page long case filed by attorney.

Here you go; you took the best decision of your life which was hostage by USCIS. Did you ask the Court to get ya Oath rather than remanding it to USCIS?

 

[jefkorn]

Good stuff wommei!
I have responses from congressman or USCIS service request saying either NC/security checks/background check pending. But I also have responses from Ombdusman stating "the processing of this case has been delayed because the required USCIS review is still in process.Please understand that the review is part of the process in adjudicating cases of similar nature."

Does the "required review excuse" from USCIS change anything as far as the Complaint is concerned? I guess not because I'm challenging the agency action which is adjudication so I guess it may not matter. Thoughts?

I'm not sure generally what is the right amount of case citations in the Complaint and references to other courts' decision etc., how much of legal detail I should get into in the Complaint as far as challenging the NC requirement is concerned.

My delay is little over 18 months. If the delay is not considered unreasonable by the court at what stage the case will be dismissed assuming of course if the Court was convinced that it had jurisdiction?

Hey, jefkorn,

Lazycis came up with the following important arguments about name check, and I think you could include it in your complaint. It basically indicates that USCIS confirmed that FBI name check is not required by law.

Finally, the Memo by Michael Aytes, Associate Director, Domestic Operations, United States Citizenship and Immigration Services from February 4, 2008 which instructed all USCIS employees to adjudicate adjustment applications when the FBI name check has been pending for 180 days or more without waiting for the results of the FBI name check confirms that the FBI name check requirements is not contemplated by federal laws and regulations. The Memo says, in particular:
“USCIS is issuing revised guidance in response to recommendations of the DHS office of Inspector General (OIG-06-06) regarding the need to align the agency’s background and security check policies with those of U.S. Immigration and Customs Enforcement (ICE)… In the context of removal proceedings, ICE has determined that FBI fingerprint check and Interagency Border Inspection Services (IBIS) checks are the required security checks for purposes of applicable regulations”.
Given the fact, that adjustment of status can be granted in removal proceedings (see 8 C.F.R. § 240.1(a), 8 U.S.C. § 1255), we conclude that FBI name check is not required by federal laws or regulations to adjudicate AOS application. Plaintiffs would also like to raise a question: “Why the USCIS waited 3 years to follow recommendation issued in year 2005?”.

 

[meteor8]

Could someone help me to locate this case in LEXIS? Especially the opp to MTD doc? I am interested in the arguments related to TRAC factors in preparation of my response to defendants' response to order to show cause for my WOM case.

2008 U.S. Dist. LEXIS 16998

Also, can I file MSJ at the same time when I file my response to AUSA's response to order to show cause?

Thanks a lot!

 

[wommei]

jefkorn

Good stuff wommei!
I have responses from congressman or USCIS service request saying either NC/security checks/background check pending. But I also have responses from Ombdusman stating "the processing of this case has been delayed because the required USCIS review is still in process.Please understand that the review is part of the process in adjudicating cases of similar nature."

Does the "required review excuse" from USCIS change anything as far as the Complaint is concerned? I guess not because I'm challenging the agency action which is adjudication so I guess it may not matter. Thoughts?

I don't think this could serve as a good reason. It you have been waiting for 10 years until now, they could say the same thing. They do have a duty to process your case within a reasonable time.

I'm not sure generally what is the right amount of case citations in the Complaint and references to other courts' decision etc., how much of legal detail I should get into in the Complaint as far as challenging the NC requirement is concerned.

I think you should includge Judge Baylson's opinion about name check (it is not required by law) and Feb 4th Memo (USCIS admit that it is not required by law). That should be enough to clearify the name check issue.

My delay is little over 18 months. If the delay is not considered unreasonable by the court at what stage the case will be dismissed assuming of course if the Court was convinced that it had jurisdiction?

Probably after AUSA filed MTD or after you file oppo. to MTD. I am conservative and I waited until 2 year mark. I think it depends on which judge preside over your case and his understanding of "unreasonable delay". So I would think you will probably pursue this with some risk if it is between 18-24 months.

 

[jefkorn]

Cases unreasonable delay <= 24 months ???

I understand the that the determination of unreasonable delay is up to the judge. Do you think USCIS's own admission on NC memo has changed the equation? That 180 days is what's "reasonable" delay to hold off adjudication on I-485 if no NC results have been returned to USCIS.
I need to collect cases where the delay between 18-20 months or little over but less than 24 months. I have located the following, please add if you have additional cases:

1. Galvez v. Howerton, 503 F.Supp. 35 at 39 (C.D.Cal.1980) (delay of six months unreasonable).
2. Paunescu v. INS, 76 F.Supp.2d 896 at 901 and 902 (N.D.Ill.1999) (delay of 10 months unreasonable).
3. Jefrey v. INS, 710 F.Supp. 486 (S.D.N.Y.1989) (delay of 16 months unreasonable).
4. Dabone, 734 F.Supp. at 202 (delay of 20 months unreasonable).
5. Agbemaple v. I.N.S., 1998 U.S. Dist. LEXIS 7953, 1998 WL 292441 *2(20 month delay).

Probably after AUSA filed MTD or after you file oppo. to MTD. I am conservative and I waited until 2 year mark. I think it depends on which judge preside over your case and his understanding of "unreasonable delay". So I would think you will probably pursue this with some risk if it is between 18-24 months.

 

[lazycis]

Li Duan v. Zamberry, No. 06-1351, 2007 U.S. Dist. LEXIS 12697 (W.D. Pa. 2007) (I-485 pending 16 months)
Ajmal v. Mueller, No. 07-206, 2007 U.S. Dist. LEXIS 52046 (E.D. Pa. July 17, 2007) (no interview N-400 pending for a little more than a year)
Alsaleh v. Gonzalez, Civil Action No. 3:06-CV-2162-N, Order on Mot. to Dismiss (N.D. Tx. June 6, 2007) (I-485 - 18 months)
http://bibdaily.com/pdfs/Alsaleh 485 mandamus 6-6-07 NDTXDal.pdf

 

[jefkorn]

Thanks Lazycis. Keep them coming. I want to make anything over 6 months to be considered unreasonable!!

1. I know another AOS mandamus (see attached file) that was filed in Middle District of PA on March 05, 2008 and before the 60 days deadline of response from AUSA, the application got adjudicated. No determination was made as to reasonableness of delay, the application had been pending for little over 13 months. How can one cite such a case?

2. Is it a good idea to cite these case as part of the Complaint to make the point about unreasonable delay or save them for response to MTD?